Court Discusses “Me Too” Evidence in Gender Discrimination Case

In Doton v. City of Syracuse, 11-CV-620, 2019 WL 6337326 (NDNY Nov. 27, 2019), a gender discrimination case, the court ruled on various motions in limine with respect to evidence the parties seek to introduce at the upcoming trial.

Among other issues addressed by the court, defendants sought to preclude Plaintiff from offering “me too” evidence “regarding or by other City employees who allege they have been discriminated against unless such individuals and their claims are similarly situated to Plaintiff’s.”

While the court ultimately concluded that it lacked sufficient information to issue a ruling, its observations are instructive. From the decision (citations and internal quotation marks omitted, paragraphing altered):

In general, a plaintiff alleging gender discrimination may sustain her burden through introduction of direct evidence, such as statements by the employer referencing gender, or through proof of circumstances from which an inference of discrimination may be drawn. Thus, a plaintiff may introduce evidence of disparate treatment, i.e. that employees of a different gender were treated more favorably, or that employees of the same gender were also subject to discrimination. The latter is sometimes called “me too” evidence. The Supreme Court has recognized that the relevance of “me too” evidence is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.

[C]ourts have identified a number of factors should be considered when determining the admissibility of “me too” evidence:

1) Whether the evidence is logically or reasonably tied to the decision made with respect to the plaintiff;

2) Whether the same ‘bad actors’ were involved in the ‘other’ conduct and in the challenged conduct;

3) Whether the other acts and the challenged conduct were in close temporal and geographic proximity;

4) Whether decision makers within the organization knew of the decisions of others;

5) Whether the other affected employees and the plaintiff were similarly situated; and

6) The nature of the employees’ allegations.

Moreover, courts retain discretion to exclude “me too” evidence pursuant to Rule 403, which also requires a fact-intensive, context-specific inquiry.

Plaintiff asserted that “evidence at trial will show that female officers of the Syracuse Police Department (SPD) encountered similar forms of discrimination and the same actors (the individual Defendants) were involved” and “identifies several examples of alleged discrimination against other women who worked at the SPD.”

However, the court, finding that it lacked information necessary to make a ruling, directed plaintiff to “make a detailed proffer as to any particular ‘me too’ evidence, taking into account the factors identified above.”